No need to give ‘bonus points’ to disabled applicants

Nancy Houser suffered a severe elbow injury at work, making it impossible to use that arm for lifting in her warehouse job. The company transferred her to greeting visitors at a construction site, but when the project was done, so was Houser's job.

She applied for several open clerical positions at the company for which she had the minimum qualifications. But in every case, a better-qualified applicant won the job. Houser eventually was terminated.

The Equal Employment Opportunity Commission (EEOC) sued on her behalf under the Americans with Disabilities Act (ADA). The agency claimed the ADA requires companies to give disabled employees special consideration when they apply for jobs, even if there is a better qualified nondisabled applicant, and hire the disabled person if she is at least minimally qualified.

But the 7th Circuit Court of Appeals rejected the EEOC's argument, calling it "affirmative action with a vengeance." The court said nothing in the ADA requires that companies give "bonus points" to disabled applicants. The court also noted that the company had a consistent policy of choosing the best applicant, rather than the first qualified one. (EEOC v. Humiston-Keeling Inc., No. 99-3281, 7th Cir., 2000)

Advice: This court said the ADA doesn't require you to reassign a disabled employee to a job for which there is a better qualified applicant. The key point: You must have a consistent policy of choosing the best qualified applicants.

The court's ruling likely would have been different if the company hadn't had a policy of hiring the best applicant. It's also critical to have accurate job descriptions so that you can use objective criteria to determine who is best qualified.

Other courts have been giving great deference to the EEOC's interpretations of the ADA. However, this ruling by the 7th Circuit (Illinois, Indiana and Wisconsin) is highly critical of the EEOC. It remains to be seen whether other courts will be equally rough on the commission.

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